Defense of Marriage Act

The Defense of Marriage Act (DOMA) is a federal act that former president Bill Clinton officially made law on September 21, 1996. DOMA serves to define marriage, for the purpose of federal law, as the union of a man and a woman. The law gives Congress the authority to set forth parameters to the Full Faith and Credit Clause as contained in the Constitution that give individual states the right to refuse to recognize same-sex marriages that have been sanctioned in other states.

In 2004, speaking in his once-weekly radio address, the then president George W. Bush said, "If courts create their own arbitrary definition of marriage as a mere legal contract and cut marriage off from its cultural, religious and natural roots, then the meaning of marriage is lost and the institution is weakened." However, the issue is one that continues to generate heated feelings. One can find strong voices both for and against a strict definition of marriage as a union that can only exist between a man and a woman.

Opponents of the Act claim that DOMA violates several constitutional provisions including the Due Process Clause, the Equal Protection Clause, the Bill of Attainder Clause and the Privileges and Immunities Clause. They also speak of the Act as being poor public policy since it alienates the gay community and makes it impossible for them to experience a marital relationship. Furthermore, they state, DOMA is an attempt by Congress to force a disability on a specific, identifiable sector of society.

In 1993, the Supreme Court in Hawaii issued an opinion that its marriage law was a form of sexual discrimination and therefore unconstitutional. The case was remanded to the circuit court for a hearing to decide whether the state had any compelling interest in retaining its marriage law. The circuit court found against maintaining the law. Still, the victory for same-sex marriage was limited, in that a state constitutional amendment was later passed that gave the legislature the ability to define marriage as the union of a man and a woman.

Even so, what was happening in Hawaii brought to the fore an important national issue: If Hawaii legalized same-sex marriage, would the other states be forced to recognize such marriages? Experts in constitutional law began setting forth their thoughts on the subject. Meantime, a total of thirty-seven laws were enacted to protect some states against the need to recognize same-sex marriage licenses issued in other states.

DOMA was the federal incarnation of these laws. There was overwhelming support for the Act in both the House (342-67) and the Senate (84-14). DOMA was created to give states a loophole by which they might refuse to recognize same-sex marriages performed in other states.

It soon became clear that the issue of same-sex marriage recognition was far from settled. Activists in Vermont, in support of same-sex marriage, sued to make the state's law invalid. In 1999, the case was decided by the Vermont Supreme Court. While the court rejected the plaintiff's request to redefine marriage, it did decide that the Vermont Constitution required the state to offer the benefits of marriage to gay couples. The Vermont legislature responded by creating a new legal status called "civil union" for same-sex marriages. From that time on, wherever state statutes referred to spouses or marriage, this would include the partners in a civil union.

After the semi-victory of DOMA opponents in Vermont, activists continued their efforts in various states to attempt to achieve the recognition of same-sex marriage. In the case of Goodridge v. Department of Health, the Massachusetts Supreme Judicial Court ruled that the Massachusetts Constitution required a redefinition of marriage. But in Indiana, Maryland, New York and Washington the activists failed to persuade the courts to redefine marriage to include gay couples. On the other hand, in 2008, both California and Connecticut ruled that their states must redefine marriage.

The debate continued, with some remaining staunch in defending DOMA and the traditional definition of marriage as a union between a man and a woman. Those in favor of this marriage definition say that marriage has always been made up of people who are potential mothers and fathers. As such, the marital act is one that is child-centered. Only a man and a woman can procreate, they say, and one central reason for marriage is to sanctify procreation and offer a secure environment in which children are raised with both a mother and a father.